The first step in addressing dysfunction in the patent system: Admitting we have a problem | Opensource.com

Does the Apple-Samsung case have a silver lining? For the open source community, the large damages verdict is disturbing, but at least it is drawing public attention to some of the deep problems of our patent system. This week the New York Times ran a front page story on the jury’s verdict that said, “The case underscores how dysfunctional the patent system has become.”

The definition of “dysfunctional” is relating to “abnormal or impaired functioning.” (Merriam Webster) The word fits well here. As one expert noted in the Times story, patents “are supposed to be an incentive for innovation.” That’s not the way they’re working in the smartphone wars. Instead, entrenched players are using them to tax competitors, or even to block them from the market. To the extent patents block competitors and reduce competition, innovation is likely to suffer.

One difficulty in addressing the problems of the patent system is that they are complex and difficult for non-specialists. The issue just won’t fit on a bumper sticker. Those in the best position to understand the problems and advocate for change—that is, patent attorneys—have a vested interest in the system and (with notable exceptions) tend to oppose significant change. The rest of us can study up and eventually get a grasp, but it’s challenging, and takes time. That’s a problem. We’ve all got a lot of other things that we need to do. And most of the time, the effects of the patent system on individuals are so attenuated we hardly notice them.

But in the Apple-Samsung case, those effects could be tangible. The large damages awarded or a broad injunction could touch many of us where we live, reducing our technology product choices or increasing the cost of products we like. We all love our smartphones, and a lot of us love our Samsung devices. (Full disclosure: I’m crazy about my Samsung device.) If the courts ultimately bar access to our preferred smartphones for patent reasons, there will be wailing and gnashing of teeth, and perhaps more voices in favor of fixing a dysfunctional patent system.

There is no shortage of patent reform ideas open for consideration. These include abolition of software patents, sharply limiting patent terms, creating an independent invention defense, shifting litigation costs to losing plaintiffs, controlling discovery costs, tightening invention disclosure and claiming requirements, and limiting the powers of the International Trade Commission. What we don’t yet have is widespread recognition that these ideas need to be debated, with a view to passing legislation that amounts to meaningful reform. But that could change.

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Computers were invented independently by Britain, the United States, and Germany during WW II. The defining feature of a computer is that it has an instruction set, typically 100 to 200 instructions, which can be used in an infinite variety of ways without having to make any changes to the computer hardware. This instruction set is the sum total of every function that a computer is capable of doing.

Computer programs are algorithms. A programmer creates a list of instructions for the computer to follow. The programmer structures the list so that the computer does some complex function that the programmer considers useful. A simple program might contain thousands of instructions. A complex program might contain millions of instructions. A programmer keeps his programs from descending into chaos by creating algorithms within algorithms within algorithms. No computer program creates, alters, or destroys any of the computer hardware instruction set.

Computer programs are algorithms. The very first patent law passed by Congress said that algorithms cannot be patented and that part of patent law has never changed.

Since computers were invented during WW II computer programs are protected by copyright. In the United States there is a body of copyright case law developed
from about 1954 onward which is consistent and works well. Copyright of computer software works well both from a business and a legal standpoint. It still works well in spite of the mess created by inventing software patents in addition to copyright.

In 1994 a group of lawyers confused the U.S.Supreme Court into thinking that their software should be granted a patent because the software changed a machine's functions thus creating a new machine. So the Supreme Court ruled that any software which changed a machine's function could be patented. When the Supreme Court invented software patents on a legal fiction in 1994 computer software became the only thing protected by both copyright and patents. The copyright law continues to work well and the software patents has created an utter mess in the software industry.

The legal fiction that the Supreme Court created was that a computer program changes the physical machine that it runs on into a new machine. The new machine produced by the software is patentable. Therefore all computer software patents "reference the hardware" i.e. they claim that the new software running on a machine creates a new machine.

Any technician, whether hardware or software, will tell you that this claim is nonsense. The machine runs the instructions given to it by the programmer in the order stated and no new instructions are created or any instructions altered. Absolutely no hardware changes occur. Indeed, one of the goals in creating programmable computers was to stop having to redesign and rebuilt a new machine for any new application.

Lawyers, on the other hand, blithely forge ahead swamping the Patent Office with thousands of patent applications weekly, each making the fantastic claim that their software changes a machine. The Patent Office thinks that they have to accept this nonsense because the Supreme Court has ruled that they have to.

One way that the software patent problem could be solved is by the Patent Office strictly follow the 1994 ruling. Each software patent applicant should be asked exactly what hardware functions are changed by the software. The lawyers will never be able to answer that question even with the help of their company's technicians. All software patent applications will be denied.

Another way that the software patent problem could be solved is by each defendant in a software patent infringement case ask the plaintiff exactly what hardware functions are changed by the software. The plaintiff's lawyers will never be able to answer that question even with the help of their company's
technicians.

If either of these proposed solutions is used then the problem will eventually land in the lap of the U.S. Supreme Court. If we use a little foresight then the companies which oppose software patents will arrange a test case where it is obvious to the intelligent layman that the software changes no hardware. Then we should race to get that case to the Supreme Court first before some case goes to the Supreme Court with multiple issues and the imaginary hardware change is only one of several issues.

Thanks for your detailed discussion of instruction sets and algorithms - it helps illuminate the discussion of software patentability.

I also appreciate your views on the legal environment surrounding software patents.

But, I wanted to make a few observations about your comments:

** To my knowledge the algorithm exception didn't arise until the Benson case in the 1970s, although one could argue it was there all along waiting for the US Supreme Court to find it

** The copyrightability of software is a given now, but as best I recall was limited by fixation and other issues until the 1980s

** I assume the 1994 case you're referring to is Alappat, which was a Federal Circuit case. The law has gone through quite a few twists and turns since then, and I think it's safe to say that it's more complex and nuanced than merely requiring that software change a machine's function. The 2010 US Supreme Court case Bilski recently clarified that such a simple test is instructive but not determinative.

** Regarding whether software is the only thing protected by patent and copyright, it probably depends on how you define "thing." For example, it's not hard to imagine a patentable chemical process that's described in a journal article that is copyrighted.

I too love my Samsung Galaxy Nexus. Owned an iPhone before, but it is just subpar.

Anyways, I respect what Apple has done with its brand, but detest almost everything else. If I'm correct, I recall Apple sueing over competitor's phone being rectangular and having a screen on it. No other companies sues as much as Apple. They just try to bottleneck the compitition because they can just no longer innovate as fast as companies like Samsung.

Another case study is the face unlock feature in ICS. Apple didn't even have the technology, but since they had every patent in human existance, they were able to sue.

Both Apple and the US patent system is broken.

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Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation. He is a graduate of the University of Virginia School of Law, and a former clerk for Justice Antonin Scalia of the U.S. Supreme Court, and Judge

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